Balkinization: Parliamentary Malpractice

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# posted by

The Senate likely will not call witnesses and will acquit on Friday.

The Dems need four defecting Republicans to vote to hear witnesses. Of the three RINOs who suggested they might defect, Romney wanted to call both Bolton and Hunter Biden, which the Democrats will never allow to protect Old Joe. CO’s Gardner announced and PA’s Toomey strongly hinted they will vote no.

As for the acquittal vote, look for every Republican and maybe three Dems from WV, AL and AZ to vote to acquit. The usual suspect RINOs are echoing Dershowitz - the apparent MVP of the trial.

# posted by

Bart DePalma : 10:51 PM

Chief Justice Rehnquist had little substantive role as presiding officer and the only "point of order" type question I know of was when a senator rejected being called a "juror." The expectation would be Roberts would have no real power as presiding officer even if a few people like GM suggested it as a possibility. Not really surprised.

If Roberts refused to read a question, he should have clearly said why so that we need not rely on press reports. It should be part of the record.

# posted by

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# posted by

Unknown : 3:41 AM

Just worth to mention, that the whistleblower could testify behind closed doors.Although one may wonder, whether testifying so, in front of 100 Senate members, managers, lawyers, presiding judge and so forth... is really behind closed doors, or not publicly in fact.

I quote rule xx of the rules of the Senate:

" At all times while the Senate is sitting upon the trial of an impeachment the doors of the Senate shall be kept open, unless the Senate shall direct the doors to be closed while deliberating upon its decisions. A motion to close the doors may be acted upon without objection, or, if objection is heard, the motion shall be voted on without debate by the yeas and nays, which shall be entered on the record."

Thanks

# posted by

el roam : 6:25 AM

I'm not sure why the 'whistleblower' is being sheltered like this. We al know who he is, Schiff himself revealed his name in some incompetently redacted testimony last November. And there's the confrontation clause to consider.

# posted by

Brett : 6:52 AM

"I'm not sure why the 'whistleblower' is being sheltered like this."

Could it be the history and logic of whistleblower protections? That Trump literally threatened his life? The complete irrelvancy of who he is given no one is suggesting his initial complaint itself is grounds for anything? Who knows?

# posted by

Mista Whiskas : 7:05 AM

Mista Whiska, the whistleblower has legal protection in this regard. Anonymity confidentiality is granted to him by law. You can read here for example:

https://fas.org/sgp/crs/intel/R45345.pdf

# posted by

el roam : 7:55 AM

Mista Whiskas,

You can read also here, titled:

" Office of the Inspector General of the Intelligence Community's Statement on Processing of Whistleblower Complaints "

Although deals rather, with the issue, of how strong and legal was the complaint itself. Here:

https://www.dni.gov/files/ICIG/Documents/News/ICIG%20News/2019/September%2030%20-%20Statement%20on%20Processing%20of%20Whistleblower%20Complaints/ICIG%20Statement%20on%20Processing%20of%20Whistleblower%20Complaints.pdf

# posted by

el roam : 8:10 AM

At this point we're just pretending his identity is a secret. Pretense and logic do not play well together.

El roam has provided a useful reference. Reading it, his identity is protected against disclosure by the IG, nor generally. And even then only if he follows the rules, which this 'whistleblower' seems did not.

Nor would being required to testify constitute retaliation.

# posted by

Brett : 8:15 AM

"That Trump literally threatened his life?"

I looked that up. even Snopes thinks that claim dubious. And when Snopes declares something bad about Trump "mixed", you know its a steaming heap. Even they couldn't apply a heavy enough thumb on the scale to make this out to be true.

The "threat" consisted of asserting his rights under the confrontation clause:

"Like every American, I deserve to meet my accuser, especially when this accuser, the so-called 'Whistleblower,' represented a perfect conversation with a foreign leader in a totally inaccurate and fraudulent way,"

# posted by

Brett : 9:33 AM

Trump doesn't have any rights under the Confrontation Clause in this case.

# posted by

Mark Field : 10:03 AM

Just to elaborate, impeachment is not a criminal case. The confrontation clause only applies to criminal defendants.

In any case, the whistleblower is not Trump's accuser. His accusers are those who have percipient knowledge of the facts and can testify ("to be confronted with the witnesses against him"). Nobody gets to confront a hotline tipster, and that's the equivalent of the whistleblower.

# posted by

Mark Field : 10:08 AM

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# posted by

Joe : 10:14 AM

"I'm not sure why the 'whistleblower' is being sheltered like this."

Schiff provided a range of quotes from Republicans in Congress about the importance of protecting whistleblowers & their identity is still secret. There are a range of degrees there and clearly it still is not simply common knowledge. Mistreatment of the whistleblower also now will discourage others. So, when one doesn't want to blow the whistle on something that a Brett thinks should be outed, one is hung on their own petard so to speak.

Finally, the identity of the whistleblower has little relevance to what is being charged here since we know the basic facts. The fact some whistleblower might in some fashion have a reason to have a grudge is not novel -- that is often why they do it. But, if they have the goods and the goods are aired out by other means too, that doesn't change what is exposed.

The desire to expose the whistleblower is a clear attempt to throw dust to confuse and in the process very well can risk harm (exposed whistleblowers in much less weighted cases had various things done to them) and deter future whistleblowers. This is horrible but that's what Trump supporters have to advance his cause basically. Horrible arguments.

# posted by

Joe : 10:15 AM

"In any case, the whistleblower is not Trump's accuser. His accusers are those who have percipient knowledge of the facts and can testify."

If he lacks percipient knowledge of the facts, he is no whistleblower, he is merely dealing in hearsay.

That the whistleblower is Eric Ciaramella, (Revealed by Schiff's own incompetent redaction of testimony.) by itself, is of no particular consequence. The circumstances surrounding the creation of the 'whistleblower' report, OTOH, may be quite relevant.

Just yesterday Schiff, on the floor of the Senate, stated that he didn't know the identity of the whistleblower: "Let me be clear about several things about the whistleblower. First of all, I don't know who the whistleblower is," he began. "I haven't met them or communicated with them in any way. The committee staff did not write the complaint or coach the whistleblower what to put in the complaint. The committee staff did not see the complaint before it was submitted to the inspector general.

"The committee, including its staff, did not receive the complaint until the night before," Schiff continued. "We had an open hearing with the active [intelligence] director on September 26, more than three weeks after the legal deadline by which the committee should have received the complaint."

Now, thanks to the speech and debate clause, Schiff faces no legal jeopardy for this statement, even if it can be proven a lie. But if it can be proven a lie, it certainly hurts his case.

That makes the 'whistleblower's' testimony relevant. He may be immune from retaliation for whistleblowing if he indeed followed the rules, he is not immune from testifying, or perjury charges if he lies under oath.

We should hear from him, about what first hand knowledge he actually had, about whether he was coordinating with Schiff's staff, about whether he violated the whistleblower rules by going straight to Congress rather than first to the IG. There are a lot of relevant questions he needs to be asked.

# posted by

Brett : 10:33 AM

"If he lacks percipient knowledge of the facts, he is no whistleblower, he is merely dealing in hearsay."

That's simply false as a matter of law.

But so what if it's hearsay? That only matters if someone is testifying (and there are lots of exceptions even then). As I've already shown, the whistleblower is not a percipient witness and won't testify. That is irrelevant to his status as a whistleblower.

# posted by

Mark Field : 10:54 AM

"I want to know who’s the person, who’s the person who gave the whistleblower the information? Because that’s close to a spy.”

“You know what we used to do in the old days when we were smart? Right? The spies and treason, we used to handle it a little differently than we do now,”

If Obama or any other Democrat had said anything like that Bircher Brett would have no hesitation to see it as threatening.

# posted by

Mista Whiskas : 10:55 AM

"If he lacks percipient knowledge of the facts, he is no whistleblower, he is merely dealing in hearsay."

LOL! Whisteblowers are not required to have airtight prosecutorial cases! They're the equivalent of a 'tipster' in a criminal investigation.

I mean, really, the Trump defenders have really trotted out laughable after laughable defenses.

# posted by

Mista Whiskas : 10:58 AM

Bircher Brett, and the mainstream of the GOP, attitude toward the whistleblower demonstrates something important about their authoritarian tendencies and the falseness of their ostensible 'libertarianism.'

The spirit of whistleblower protections is: a government worker might see a government official abusing their power, we want them to report this because so much of government is hidden from the public and fear or political or other reprisal might keep people from reporting such abuses. An ostensible libertarian should embrace this like a bear hug.

But an authoritarian wouldn't. Authoritarians worship the strong and powerful and hate, hate it when the weak or vulnerable dare to empoweringly 'punch up.' who do they think they are?

And so, Bircher Brett and the mainstream GOP don't want the whistleblower here protected, that guy dared punch up at those in power, he deserves to be attacked, dragged through the mud, etc. Everyone must know their place.

# posted by

Mista Whiskas : 11:39 AM

"The spirit of whistleblower protections is: a government worker might see a government official abusing their power, we want them to report"

Oh, absolutely. Now, if they witness squat, and just report on rumors around the water cooler? That's not the same thing.

And if the whistleblower form is altered to no longer state that hearsay is inadmissible, and the change backdated to conceal that it was just to clear the road for one particular report?

And, whoa, looks like some obstruction of Congress is perfectly fine.

Which is why Michael Atkinson is on MY short list of desired witnesses. He has some interesting questions to answer. This "whistleblower" stinks as much as the Steele Dossier predicated spying on Trump's campaign.

# posted by

Brett : 12:24 PM

Chief Justice Roberts, who apparently is not just a potted plant, just refused to read a question from Sen. Paul as written. Didn't say why. Sen. Paul should have challenged it and not doing so makes it look like he is just doing it for show. Again, Roberts should have explained his judgment all the same.

===

The whistleblower's allegation was submitted to the appropriate parties & analyzed. It wasn't just "watercooler talk." And, it was independently addressed and the impeachment as well involves various things not even involved in the complaint specifically.

It is unclear how that link shows it is "perfectly fine." Stronger rules to stop obstruction would be good though rejecting the second count of impeachment will only encourage that sort of thing.

To the degree the matter is relevant, it's fine to have witnesses to address it. Democrats upfront put forth a motion to have witnesses including an independent arbiter such as Roberts to judge relevancy. It's appreciated if Brett thinks the Republicans are wrong here.

# posted by

Joe : 1:24 PM

In theory, the Senate can override any statutory whistleblower protections. I suspect Republicans don't want to take that vote.

But why would they need to? If they really need his testimony, why not put him/her behind a screen? Is there a reason, other than Republican political point-scoring, why he has to be outed?

# posted by

Dilan : 1:30 PM

"The whistleblower's allegation was submitted to the appropriate parties & analyzed."

So was the Steele dossier, and it was still a steaming heap of lies. Sometimes the appropriate parties have it in for you.

"But why would they need to? If they really need his testimony, why not put him/her behind a screen? Is there a reason, other than Republican political point-scoring, why he has to be outed?"

What is he, a child? Are we pretending again that he hasn't already been outed?

You can argue that the confrontation clause doesn't apply to impeachment trials. Now argue that the reasoning behind it doesn't.

# posted by

Brett : 4:57 PM

So was the Steele dossier, and it was still a steaming heap of lies. Sometimes the appropriate parties have it in for you.

I'm not going to grant the first part. It still was not mere "water cooler chatter." And, it submitted to more than one layer of review. Plus, the impeachment is not merely resting on the whistleblower. Which multiple Republicans are on record saying we should as a rule protect and there is no reason not to do so here.

===

No, it is not clear the whistleblower was "outed" and even if they were there are a range of ways to "out" which is why people like the Chief Justice of the Supreme Court will not do things to more clearly do so.

===

You can argue it since that was the understanding from as early as the 1790s -- Bill of Rights provisions do not apply to impeachment trials though the Senate can set forth any rules that it deems warranted. The principle even in a criminal trial is not absolute and the relevancy of outing the whistleblower given the impeachment counts do not turn on their identity -- applying overall reasoning -- makes it wrong to do so here.

# posted by

Joe : 9:28 PM

To add to Joe's point and to reiterate what I said above, the Confrontation Clause permits a defendant to confront "the witnesses against him". The whistleblower is not now and never will be a witness against Trump. Neither are hotline tipsters, and there's no right to confront them either.

# posted by

Mark Field : 8:40 AM

Yes, hard to see where the whistleblower would be a such witness though that isn't really necessary here -- compulsory process [though the relevancy here would still be dubious] would in a normal case would be warranted for witnesses in a wider number of cases than that, obviously. So, it is a bit besides the point though worth noting.

# posted by

Joe : 12:45 PM

Also, it worth saying again, that just because there is some supposition (including apparently by a statement of that big civil libertarian, Rand Paul) that the whistleblower was outed, that is quite different than a formal process that directly exposes the person. And, even if the person testifies behind a screen or something, it is quite possible that the identity once that happens will be leaked.

Stuff is classified and otherwise protected even if it somehow unofficially is leaked. It is simply outrageous and against basic good national policy here to target the whistleblower like this. This shouldn't be as controversial as it is.

# posted by

Joe : 12:48 PM